Fifth Circuit Construes Equitable Tolling

The Fifth Circuit has determined that when an applicant is seeking equitable tolling of the filing deadline for a motion to reopen based on changes in case law, she must demonstrate that she filed the motion within 90 days of becoming aware of that change in law.

"Because Gonzalez-Cantu filed her motion to reopen on March 18, 2015, she needs to show that she discovered Garcia-Carias no more than 90 days before that date, given that her lack of knowledge of that case was the circumstance that supposedly tolled the limitations period. Yet her sworn statement, executed on January 5, 2015, says only that she learned of the case 'recently.' 'Recently' could mean several weeks before or several months before, either of which defeats her tolling claim. Indeed, at one point in her motion to reopen, she said she learned of Garcia-Carias on October 10, 2014, and the IJ concluded, based on that date, that her motion was untimely. Although Gonzalez-Cantu claims that the October date was a 'typographical error,' it further shows that she has failed to establish when she actually learned of the case."